Stu Johnson Samantha Ball

Transcription

1 Stu Johnson Samantha Ball

2 The Ultimate Guide To Winning Your Social Security Disability Claim Stu Johnson Samantha Ball Social Security Disability Lawyers

3 Published by PILMMA Publishing, st Avenue South North Myrtle Beach, SC. Contact the publisher at for more information. The Ultimate Guide to Winning Your Social Security Disability Claim Authors: Stu Johnson & Samantha Ball Editor: Valerie Beasley All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by information storage and retrieval system without written permission from the author, except for the inclusion of brief quotations in a review. Copyright 2015 by Kenneth L. Hardison Thank you to the Office of Retirement and Disability Policy, Social Security Administration for summary information taken from their Annual Statistical Report on the Social Security Disability Program 2010 published in August ISBN

4 Table of Contents About the Authors...4 Why We Wrote This Book...5 Important Disclaimer...6 Are You Disabled?...7 Defining Disability...7 The 5-Step Process...8 How to Apply...11 What You Need to Apply...12 The Disability Application Interview for Applications Taken by Phone or In Person...14 Initial Application Appeal...16 Disability Hearing...17 Live Hearings and Video Hearings...18 What Evidence Do You Need?...19 Medical Records and the Electronic File...25 A Word on Drug and Alcohol Use and Smoking...26 The ALJ Decision...27 Appeals Council or New Application...28 Federal Court...29 Related Benefit Options...29 Supplemental Security Income (SSI)...29 Survivors Benefits...30 Wounded Warriors...31 Family Maximum Amount...31 Do You Need a Lawyer?...31 Pros and Cons of Hiring a Disability Lawyer Choosing a Social Security Disability Lawyer Reasons to File Your Application as Quickly as Possible How Long Does It Take?...36

5 How to Get a Quicker Disability Decision Approved or Denied? How Can We Help? Client s Bill of Rights FAQs Glossary of Legal Terms Learn More Get in Touch... 52

6 About the Authors Attorney Stu Johnson has practiced law since A graduate of Detroit College of Law, Stu has spent over 20 years building a highly respected practice concentrating in Social Security Disability and Veterans Disability Law. He founded the Disability Attorneys of Michigan and now works with a group of passionate attorneys representing disabled Michiganders at the hearing offices across the state. While growing up, Stu was a caregiver for his grandmother who suffered from dementia and also had the opportunity to visit his mother s special education classroom. After graduating from law school, he jumped at the chance to specialize in disability law and has represented disabled adults and children in their fight for Social Security benefits since that time. Attorney Samantha Ball has practiced strictly Social Security Disability law since graduating from Wayne State University Law School in Samantha s personal experiences with disabled family members allowed her to see firsthand how difficult it can be to navigate through the disability process. Her passion for helping people plan for their futures during difficult times has inspired her to assist in the growth of one of the largest disability firms in the State of Michigan. Focusing her practice area exclusively in the field of disability law has allowed her to hone her expertise and employ compassionate representation of her clients. 4

7 Why We Wrote This Book In our combined 30 years of practicing Disability law we understand how overwhelming it can be for individuals who have become disabled to navigate the Social Security Disability benefits process. In many cases, they are still going through medical treatment while trying to figure out which forms to fill out and what documentation to submit to the government for their claim! If you or a family member has become disabled either through illness or accident we want you to have the information you need to begin dealing with the Social Security Administration and know what questions to ask a lawyer if you decide to hire someone to represent you. So, you are probably asking yourself why we are giving this book to Michigan residents for free. I ll tell you why Most attorneys require you to make an appointment, during which you will get some of the information we are providing here. We believe that you should be able to have this information right now, and without any pressure. The hiring of an attorney to represent you is an extremely important step that should not be taken lightly, and should be done with no pressure on you. Having some basic information about the claims process can put you at ease when you go to hire an attorney. Also, this method of talking to you saves time. Writing this book gives us a chance to tell you what you need to know so that you can make an informed decision about what steps to take with your case. If you were to call us, we may not be able to answer all of your questions at that time, so rather than cut you short on the phone, we decided to provide you with this book. We don t 5

8 accept every case and we may not accept yours, but we still want you to be better educated about the Social Security process so that you don t fall victim to red tape and big government agencies. Important Disclaimer We Are Not Allowed to Give Legal Advice in this Book! Even though we may know many of the arguments that Social Security may make in your claim, we are not allowed to give legal advice in this book. We can offer suggestions and identify certain pitfalls and traps, but please do NOT take anything in this book to be legal advice. Are You Represented? We do not want to interfere with any legal relationship you might have now. If you are already represented by a lawyer, this book may raise certain questions for you. Please discuss these questions with your lawyer. 6

9 Are You Disabled? Has your doctor told you that you are disabled and can no longer work? You may have already reviewed your short-term or longterm disability insurance plans offered through your employer or gone out to the Social Security Administration website and investigated the process of filing for Social Security Disability. What you likely discovered was that there are different definitions of Disability, depending on the resource. While many private insurance carriers use a 6-month rule to define disability, the Social Security Administration (SSA) has different criteria. If you have already applied for Social Security Disability and have been denied, it does not necessarily mean that you are not disabled. The SSA application process is complicated and can easily tripup applicants who are applying for Disability. Over the last 10 years, on average only 28% of initial claims have been approved! Defining Disability Generally speaking, a disability is defined as a physical or mental condition that limits an individual s ability to work, perform activities of daily living or enjoy everyday activities. Disabling conditions may impact people of any age, and may result from birth defects, illnesses or injuries. The SSA states that a 20-year old worker has about a 30% chance of becoming disabled before he or she reaches retirement age. As we age, the likelihood of us becoming disabled increases. The range of conditions considered disabling varies widely and the degree of disability is a factor in determining whether the SSA 7

10 considers an individual to be disabled. For example, one person with multiple sclerosis may be able to work at a regular job with minimal impact from the disease, while another may not be able to work at all. Likewise, the person who is able to work may reach a point when the disease progresses and he or she is unable to work which would then render him or her truly disabled. The Social Security Administration does not consider you to be disabled unless your condition will prevent you from working for a minimum of 12 months or is considered to be terminal. The SSA does not pay claims for partial disability, and in order to qualify you must have worked long enough and recently enough to be insured for benefits. In addition, you must have a condition that the SSA considers disabling and prove to them at the time you apply that you are totally disabled. It should also be noted that the SSA may terminate disability payments at any time if they believe you no longer qualify as disabled under their guidelines. The 5-Step Process The Social Security Administration has a five step process that they follow to determine if you are disabled and eligible for disability payments through the SSA. The determination of disability is made at the state level by an examiner and the Disability Determination Services department (DDS), which includes a medical team that reviews each case file. Here are the five steps they follow: Step 1 Are you working? If you are engaged in Substantial Gainful Activity (SGA) meaning you are working and earning (gross income, before taxes) more than $1090 per month in 2015 ($1,820 8

11 if you are blind), then you are not eligible for Social Security Disability payments. Note that the SGA amount is reviewed and may change each year. Many people are frustrated that they cannot be found disabled while they are still working, even when they have serious illness such as Cancer, MS, Diabetes, Lupus, etc. This is unfortunate, but there is no way around this foundational SSA requirement. Step 2 Is your condition considered severe by the SSA? The condition must interfere with your ability to do your job to be considered severe. If it does, then the claim passes to Step 3. Step 3 Is your impairment listed (or equal in severity to an impairment listed) in the SSA s lists of disabling conditions? The SSA maintains two lists of conditions it considers disabling one list for children and one for adults. The adult list breaks conditions into fourteen high level categories by body system, including musculoskeletal, special senses and speech, respiratory, cardiovascular, digestive, genitourinary, hemic and lymphatic, skin and subcutaneous tissue, endocrine, multiple body, neurological, mental, neoplastic, and immunologic. If your condition is not listed, then the Disability Determination Services department (DDS) will determine whether it is equal to one of the disabling conditions on the list. Step 4 If your condition or impairments are severe but do not meet or equal one of the 14 SS listings, then the SSA asks: Are you able to do 9

12 the same work you have done in the past? If the DDS department believes you are able to do the same work that you have done in the past, they will deny your claim. Step 5 If you cannot do the same work that you did in the past, the SSA asks: Are you able to do any other type of work? The DDS department will review your medical condition, age, skills, experience and educational background to determine if they believe you are capable of doing other types of work. If so, they will deny your claim. It does NOT matter to the SSA that you can no longer perform the work you used to do if they believe that you can perform other jobs that theoretically exist in the national economy. It also does NOT matter to the SSA that there is NO real employer ready, willing, and able to offer you this theoretical job! NOTE: Your claim may be denied if you do not cooperate with the Social Security Administration, including failing to return paperwork, attend hearings or submit to a doctor s examination by a physician of their choosing, called a Consultative Examination. They may also deny claims if the impairment is due to alcohol use or drug addiction. 10

13 How to Apply There are two primary types of Disability claims: Social Security Disability Insurance (SSDI/DIB) and Supplemental Security Income (SSI). SSDI is the traditional disability insurance, with monthly benefits based upon income taxes (FICA) paid during the years you worked. Typically monthly amounts range from about $1,200 to $2,100/per month. To qualify you must have worked for approximately five out of the last 10 years and paid income taxes (FICA) during that time. SSI is the disability plan available for disabled claimants who have never worked, or do not have enough FICA taxed income over the last 10 years. SSI is also based upon financial need/resources. The maximum monthly amount for SSI is currently $ per month. The application decision process takes an average of three to five months, so you will want to apply for Social Security Disability as soon as you are told you will be totally disabled for at least 12 months or that your condition is terminal. There are four ways to apply: 1. Apply online at 2. Call the SSA at Visit a local SSA office. Locations may be found online at 4. Have an attorney or other third party representative prepare and submit an online application on your behalf. Your initial application will be reviewed to determine if you meet the minimum requirements from Steps 1 & 2 as described earlier and all paperwork has been properly completed. If your application passes these tests, it will be forwarded to the Disability 11

14 Determination Services department for review by a medical board/disability Examiner for Steps 3-5. ONLINE APPLICATIONS: In recent years an increasing number of claimants have begun filing online applications, either by themselves, or with the assistance of a lawyer. At this time SSA only accepts SSDI applications online, and SSI applications must still be filed manually with SSA. If you opt to file online you want to make sure that your application has been processed properly by calling and confirming this with Social Security. If you enlist the help of an attorney for an online application, they can enter all the necessary information for you online, including the detailed lists of medical providers, medications, prior work history, etc. Once filed, SSA will send you a copy to review, sign and return confirming that everything in the form is accurate. This will also confirm that SSA has received your application and is processing it. What you Need to Apply Because the process can be time consuming and so many applications are initially denied, you want to make certain that your application is as complete as possible. The Social Security Administration has worksheets available online to help you compose your thoughts and gather the necessary information needed for your application. (These are forms for your use, not to be filed with the SSA; the regular application must still be completed.) If your initial application is denied in Michigan the next step is to request a hearing. The wait for a hearing can be months. This translates to thousands of dollars in missed benefits and potential financial hardship for your family. One of the primary 12

15 reasons applications are denied is the failure to provide SSA with a complete list of medical providers since you stopped working, and thus, a lack of supporting medical documentation. Do not set yourself up to fail by submitting an incomplete application. The SSA requires that some original documents be submitted with your application for benefits. You may take them to the local SSA office or if you are represented have your attorney submit these documents. The SSA will copy the documents and return the originals to you. The types of original documents required are: Proof of age (i.e., birth certificate) and Social Security Number (SSN). List of employers and the type of work you did (account for the last 15 years). W-2 forms for the last 10 years or tax returns, if you were self-employed. Names, addresses and phone numbers for all doctors, hospitals, therapists, clinics, etc. that you have visited and the dates of all visits since the year before you stopped working or became too sick to continue full time employment. Complete medical records, including laboratory and test results, if you have them. If you do not, the SSA will order them once they process your application. List of all medications you are currently taking and the dosage of each. If your family members are also applying, you will need proof of age and Social Security Numbers for each individual and a marriage certificate if your spouse is applying. In addition to completing the Application for Benefits, you also need to complete the Adult Disability Report (Form SSA-3368). 13

16 You may also wish to complete and submit the Authorization to Disclose Information to the Social Security Administration (Form SSA-827) so the DDS department will be able to request additional medical records, if needed. The information you provide will all be reviewed by the Disability Determination Services department and discussed at your disability application interview. The Disability Application Interview for Applications Taken by Phone of In Person After you have submitted your request to apply, a Social Security Claims Representative will contact you to schedule an interview to complete a disability application interview. This interview may take place by phone or at your local Social Security office. If you have prepared ahead of time, the interview should last about one hour. To prepare for the interview, you should have detailed information regarding your work history and medical disability records at your fingertips. The SSA should send you a worksheet to collect the information for the interview, but if they do not, you should prepare anyway. Organize the data so you may find the answers quickly. The Claims Representative may ask questions similar to the following: What companies have you worked for over the past 15 years? Have company names and addresses, job titles, employment dates, supervisor names and phone numbers available. What tasks were required in each job? Have a job description for each position. This description should list the types of tasks and skills required for each job. 14

17 What doctors have you seen during the last 12 months for treatment of your disability? Again, you will want to have physician names, addresses, phone numbers, and treatment dates handy. Are you receiving workers compensation payments or any other type of disability benefits? You must disclose any payments from long-term disability, short-term disability, workers compensation or other types of related payments. The Social Security Administration may reduce any Social Security Disability benefits based on other types of income. The Claims Representative may also ask questions about your marital status, number of children and military service. Once the interview is completed, the information obtained will be forwarded to a Disability Examiner for review. Note: If you are filing your SSDI application online, or if you have an attorney submit the online application for you, then you should NOT need a phone application interview. 15

18 Initial Application Appeals On average over the ten years between 1999 and 2009, only 28% of Social Security Disability claims were approved on initial application. For most individuals, the initial application process can be overwhelming. Since you are not experienced with dealing with the SSA on a regular basis, it is likely that your initial application may fall into the 72% that are not initially approved. If your initial disability application is not approved, there are three levels of appeals in the State of Michigan that you may go through. The first level is a Request for Hearing by Administrative Law Judge (HA501). This initial appeal may be submitted online by completing the Appeal Request Internet Form and the Appeal Disability Report (Form SSA-3441). Alternately, you may call or visit your local SSA office and tell them you wish to appeal a disability ruling. You must submit your appeal no later than 60 days after the date of denial of your initial claim. If you were receiving SSD or SSDI benefits and the SSA terminated those benefits after a Continuing Disability Review (CDR), then you have only 10 days to appeal if you wish to continue your benefits. Otherwise, you have 60 days after the date of the CDR decision to file an appeal. An appeal of a CDR is called a Request for Reconsideration. The Request for Reconsideration will be assigned to a different examiner and medical team for review. It is important to note that additional medical information to support the claim should be provided in the Appeal Disability Report mentioned above. If your case is again denied, then you may appeal this denial and file a Request for Hearing (HA501). 16

19 Disability Hearing The Disability Hearing will take place before an Administrative Law Judge (ALJ). The judge will preside over the hearing and a hearing monitor will record all testimony. In this hearing, you (or your representative) will have the opportunity to present evidence and witnesses who will testify under oath about your condition; you will also be able to question the expert witnesses the SSA has testifying about your case. If you plan to represent yourself at the hearing, it is important to know what to expect so you may prepare. The SSA may have medical experts who will testify about your medical conditions and make an opinion about the level of severity. They may also have a vocational expert who will testify about how your limitations will affect your ability to perform jobs. Here are some of the common types of questions you may be asked at the hearing. Note that many of these questions will be openended, allowing you to answer in your own words. You will need to be careful to answer only the question asked and state only facts or things you know to be true. If you do not know an answer, say so. Why can t you work? Your job requires that you be able to lift 50 pounds. Are you able to lift that much weight? If not, can you lift 25 lbs? 30 lbs? What activities do you do in a typical day? What medications are you taking? Do you have any side effects from these medications? Do you have memory or concentration issues? How long can you stand? Sit? Are additional surgeries, physical therapies or treatments planned? 17

20 When you are asked why you are unable to work, do not restate your case file. The judge has the file in front of them. Tell the ALJ specifically why you are unable to perform your duties. For example, if you drove a truck and because of a back injury are now unable to turn your head quickly or fully depress the clutch or brake pedal without pain, you will want to provide this level of detail and how it has prevented you from doing your job. One of the most important pieces of advice we can give you is to be honest about your condition. Your credibility can make or break the case. The ALJ who presides over your hearing will likely have significant experience hearing disability cases. If you exaggerate your symptoms or your inability to perform certain tasks, he or she will probably be able to tell. This will kill your case. While you do have the right to ask for the judge to review your case documentation without a live hearing, we do not recommend it. Live Hearings and Video Hearings In recent years the SSA has begun scheduling more and more video hearings. These are hearings in which the Claimant is present at the hearing location, along with the Clerk and perhaps a Vocational Expert, but the Administrative Law Judge appears by video. In a video hearing the Administrative Law Judge will appear on a large video screen and you should be able to see and hear the Judge and he or she should be able to see and hear you as well. If you are uncomfortable with the idea of having a video hearing, then you have a right to disagree to the proposed video hearing and can request that your hearing be conducted in person. If SSA proposes to schedule a video hearing in your case, they will notify you in writing and you should be given an opportunity to object. Keep in 18

21 mind that in some areas of the State of Michigan if you opt for the live hearing, it may take your case a little longer to be scheduled for hearing, as the SSA Hearing office will need to set your case to be heard along with other live hearings and with a judge willing to travel from his office to the hearing site. An attorney can advise you as to the pros and cons of a live hearing versus a video hearing. However, the choice is ultimately yours. What Evidence Do You Need? In a Social Security Disability Hearing, the burden of proving that you are disabled is on you. The more relevant documentation you have, the better your chances of winning. Medical records from acceptable medical sources (as defined by the SSA) will provide the basis for the majority of evidence required. The preference is for documentation provided by the physician(s) who are currently treating your condition. If the records are unclear, the DDS department may require additional tests or a consultative examination be performed to clarify medical findings. In addition to your application, there are some standard pieces of evidence that may be needed, depending on your situation. This key information will be used by the DDS department in determining whether or not your claim is approved. 19

22 These pieces of evidence are: The Listings The SSA maintains lists of conditions it considers to be disabling. These listings are sometimes referred to as The Blue Book. You should review this list and locate your condition. Carefully read the description to verify that your condition does indeed meet all criteria listed. If it does not, you will need to prove that your condition is equal in severity to one considered disabling by the SSA. This can be challenging and you may wish to ask an attorney to help you. There are two lists, one for children and one for adults. We will refer to the adult listing in this book, though the steps work the same if you are applying for disability on behalf of your child. The conditions on the list are broken into categories, as follows: 1.0 Musculoskeletal System 2.0 Special Senses and Speech 3.0 Respiratory System 4.0 Cardiovascular System 5.0 Digestive System 6.0 Genitourinary Impairments 7.0 Hematological Disorders 8.0 Skin Disorders 9.0 Endocrine Disorders 10.0 Impairments that affect Multiple Body Systems 11.0 Neurological 12.0 Mental Disorders 13.0 Malignant Neoplastic Diseases 14.0 Immune System Disorders 20

23 Within each of these categories, the conditions are broken down further into more detail. For example, within category 1.00 Musculoskeletal System there are eight sub-categories: 1.01 Category of Impairments, Musculoskeletal 1.02 Major dysfunction of a joint(s) due to any cause 1.03 Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint 1.04 Disorders of the spine 1.05 Amputation (due to any cause) 1.06 Fracture of the femur, tibia, pelvis or one or more of the tarsal bones 1.07 Fracture of an upper extremity 1.08 Soft tissue injury (e.g., burns) Within each of these groups is an even more detailed explanation of symptoms that define each as a disabling condition. As you locate your condition and read through the details, compare this to what your doctor has told you about your condition. The listings are available online and are updated periodically, as new conditions are added and old ones re-evaluated. Refer to the online version for the most current information. These listings may be found at: Adult: AdultListings.htm Child: ChildhoodListings.htm Residual Functional Capacity If you have a condition that is not described in the Listing of Impairments, or if your symptoms differ from those listed, it does 21

24 not mean you will automatically be denied benefits. What it does mean is that you will have to prove that your condition is such that you should be considered disabled. The Disability Determination Services department will review your Residual Functional Capacity (RFC) to determine what you are still able to do even with your impairment. This includes a review to see how your medical condition affects: your ability to do work related tasks such as sitting or standing for periods of time; lifting various levels of weight; reaching, or handling large or small objects; climbing stairs or kneeling; and your ability to see, hear and speak. The DDS department will also look to see if you respond appropriately to supervisors and coworkers, can maintain concentration at work, cope with changes in your work situation, understand and carry out instructions, and whether you have environmental restrictions (in other words, can you tolerate heat, noise, etc.). In cases where there is a question about whether your condition meets the exact criteria as defined in the medical listings, you will want to have a third-party medical provider complete the Function Report Adult-Third Party (Form SSA-3380). You should then submit this form with your application. An attorney may also be able to provide you with special forms to take to your doctor or psychiatrist that address the physical and/or mental limitations and the specific criteria that the SSA will be using to decide whether you have the residual functional capacity to perform any full time work. Typically these forms are designed to allow the medical provider to quickly list your specific diagnosis, and to check off the limitations that you have and which SSA considers relevant for a finding of disability. 22

25 The Grids (aka Medical-Vocational Guidelines) If the DDS department does not consider you disabled based on the severity of your condition alone, (i.e., that you meet one of the SS listings) they will review your Residual Functional Capacity (RFC) and your Vocational Profile to determine whether you are truly disabled, could do other work or are able to engage in Substantial Gainful Activity (SGA). The DDS department uses tables (or grids) as guidelines to determine your Vocational Profile and capacity to continue to work with your condition. The SSA has found that age, education and work experience all affect your capacity to work and to learn new skills. They consider that if you are over the age of 50, you will have difficulty adjusting to work other than the types you have done over the past 15 years and even more so if you are over 55. If you are under age 50, the DDS department generally assumes you will be able to adjust to other work even if you are no longer able to perform the work that you used to do. Remember, they do not have to show that there is a real employer offering you such a job; just that the job theoretically exists and that they believe you could perform that job! An attorney should be aware of the Medical Vocational Guidelines, and how they impact your case, as well as the classification of your prior work, and whether you have directly transferable skills from that work to other types of jobs in the national economy. The Medical-Vocational Guidelines look closely at what tasks you are able to perform given your medical impairment, your age, education and types of work you have performed in the past 23

26 (transferable skills) to determine your capacity for other work. The guidelines divide work into sedentary, light, medium and heavy physical characteristics within the grid. The ALJ will determine if your residual functional capacity ability is sedentary (mostly work performed sitting down), light (work which involves standing most of the day with lifting 10 pounds or more), or medium or heavy, (work performed standing and with increased requirement or ability for lifting 25 to 50 or more pounds). Here is an example directly from the Social Security Administration s website: A person with the following Vocational Profile would be found disabled according to our tables of Medical-Vocational Guidelines: Capacity for work: Can lift no more than 20 pounds for up to 1/3 of an 8-hour workday, and Can lift up to 10 pounds for 2/3 of an 8-hour workday, and Can stand and/or walk for about 6 or more hours in an 8-hour workday and Has no other limitations Age: 57 Education: High School Graduate Work Experience: No skills that can be transferred to work he is physically able to do. However, if this individual had skills that could be used for work that is within his capacity and that exists in significant numbers in the national economy, we would find him not disabled. It is important to note that when making a disability decision, the 24

27 SSA does not consider the likelihood that the individual will find a job only that they would be able to do the work if they did find one. Medical Records and the Electronic File It is most important that you continue to obtain necessary medical care and treatment, and that you try and follow your doctor s recommendations throughout the SSA process. Even if an Administrative Law Judge wants to approve your case, their hands will be tied if there are no ongoing medical records to show continued disability. You will want to make sure that the SSA is made aware of all your relevant medical providers. You will need to update the SSA with the names of any additional providers whenever you receive medical care or treatment from new doctors, clinics or hospitals. It is also important that you provide them with any prescriptions for canes, walkers, etc. If you are at the Hearing phase of your disability case, then you will want to make sure that you obtain those records for the SSA. If you have an attorney they will request and then submit your records, particularly at the hearing phase. In determining whether you are disabled, the SSA is always concerned with what is stated in your medical records. It is the strongest evidence you can have in any disability case! Objective Medical findings, including test results from X-rays, MRI s, CT scans, EMG studies, etc. are most important and will carry great weight with the SSA. During the Initial and 25

28 Reconsideration stages SSA will order those records as long as you or your attorney have notified them of the providers. At the hearing phase it is you or your attorney s responsibility to provide copies of all subsequent medical care, test results, prescriptions for canes or walkers, etc. to the SSA for consideration. Remember, SSA will NOT request your medical records at the Hearing level. The SSA has an electronic file set up with your name and SS number and all of your documentation is located in that electronic file. If you do not want the responsibility of requesting and submitting your own medical records at the Hearing level, an attorney should be able to both obtain your medical records and submit them electronically directly to SSA to be placed in your electronic file. If you are not being represented by an attorney, then you will most likely need to mail or fax your records to the SSA for review and for placement into your SS file. A Word on Drug and Alcohol Use, and Smoking If drug and alcohol use shows up in your medical records it can create unnecessary problems for you. Typically the SSA is very concerned when your medical records show ongoing drug or alcohol use and/or continued smoking. If the SSA sees use of these substances in your records, it may well cause them to turn your case down, particularly if they feel that the use of these substances in any way aggravates your medical conditions. In our experience, the SSA views drugs, alcohol and smoking negatively; It seems that drinking alcohol and/or smoking potentially make heart patients conditions worse or at least keep their conditions from improving, cause longer healing times following fractures and surgeries, worsen COPD, and increase 26

29 depression and anxiety in those applying for disability based on mental impairments. Because it can be damaging in so many different kinds of cases it is important that anyone who has had the use or abuse of these substances in their past work hard to overcome these issues and ensure that they do not show up in ongoing or future medical records which the SSA will be reviewing. As an additional practical matter, we have found that judges do not want to award disability money to someone who they believe is going to turn around and use that money to obtain drugs, alcohol, or cigarettes. The ALJ Decision Once your case has been heard, the ALJ will make a ruling. The ruling will generally come after the hearing in the form of a written notice. There are four potential rulings that may be handed down: 1. Favorable Decision: The ALJ rules in your favor in your disability case and agrees to disability payments backdated to your claim date. [Note that there is a oneyear limitation on back payments, so if your initial claim was 15 months ago, for example, you may only be able to recover 12 months of disability pay.] 2. Partially Favorable Decision: The ALJ rules in your favor BUT disagrees on the date of disability. This ruling may impact the benefits you are entitled to receive. If you are not currently represented by an attorney, I recommend that you speak with one to better understand this ruling and its impact on the benefits payable to you. 3. Unfavorable Decision: This is a flat denial of your claim. You may choose to appeal to the Appeals Council if you receive an Unfavorable Decision. While you are not 27

30 required to be represented, I would recommend that you consult an attorney if you receive this ruling. 4. Dismissal: If you fail to appear at the hearing (without just cause) or if you do not present new information at the hearing to justify your claim, it may be dismissed by the judge. The Dismissal may also be appealed to the Appeals Council. You may choose to appeal any decision within 60 days to the Appeals Council. Note that while you can appeal, it is not always wise to do so. For example, if you appeal a Partially Favorable Decision without substantial reasons for doing so, the Appeals Council could overturn the ALJ s decision and come back with an unfavorable ruling. Likewise, the Appeals Council could remand the case back to the ALJ for a second hearing. At this point, if you are represented, you should rely on your attorney s experience and best judgment. If you are not represented, you may wish to consult with an experienced Social Security Disability attorney. Appeals Council or New Application If you do appeal the ruling from your Disability Hearing, the appeal will be heard by the Appeals Council. This group is comprised of several Administrative Law Judges who will review the transcript from the Disability Hearing along with any additional evidence you submit and decide whether to grant, deny or dismiss your Request for a Review. If the Council chooses to grant the review, they may uphold the original decision, overturn it or send the case back to the lower level for another hearing. In our experience, it is taking approximately a year to obtain a decision from the Appeals Council and far more cases are denied that are ever won at this appellate level. 28

31 Thus, instead of filing an Appeal to the Appeals council, many people opt to just start the entire SS process again by filing a new application. The SSA does not permit you to file both an Appeals Council appeal as well as a new application at the same time. The pros and cons on this issue are best addressed with your attorney, and the new application may not be a viable option for all Claimants. Federal Court Again, if you are unhappy with the outcome at the Appeals Council level, you have the option of appealing the case by filing an action in federal district court. This must be filed within 60 days of the date of the decision of the Appeals Council. At the federal court level, you are required to be represented by an attorney. If the U.S. District Court does not find in your favor, you have the option of going to the next level by appealing the decision to the U.S. Circuit Court of Appeals. Related Benefit Options There are several other benefits that may come into play when you file for Social Security Disability. These depend upon your financial situation and whether you are married, have children, or have a spouse who is disabled. Supplemental Security Income (SSI) Supplemental Security Income (SSI) is a program designed to provide financial assistance to those with a very low income, few assets and are age 65 or over, blind or disabled. 29

32 In order to be eligible to receive these benefits, your household income must be very low (the number varies by state) and the value of your total assets (not including your house or car) must not exceed $2,000 if you are single and $3,000 if you are married. SSI also requires that you meet the same proof of disability needed to receive regular Social Security Disability benefits. SSI is also available to children who have medical conditions that Social Security deems serious enough to be considered disabilities. For purposes of determining how much a child is due each month, part of the income of the parent or parents is deemed to be the child s income. Survivors Benefits If you worked and earned sufficient work credits, your spouse and children may be eligible for Survivors Benefits should you die. Benefits may also extend to a surviving spouse (if the marriage lasted longer than 10 years) and to dependent parents (over age 62 and receiving financial support from you). Additional rules apply if the surviving spouse or children are also disabled. In general, Survivors Benefits are payable as follows: 1. A widow or widower may be eligible for full benefits at retirement age. If he or she is disabled, benefits may begin as early as age Your widow or widower may receive full benefits prior to retirement age if he/she is caring for your child who is under age 16 or disabled. 3. Your unmarried surviving children may receive benefits up to age

33 4. If you provided more than 50% support to your parents (age 62+), they would be considered your dependents and would also be eligible for benefits. Wounded Warriors Military service members who are disabled may be eligible for Social Security Disability benefits and SSI benefits over and above those benefits offered by the Veterans Administration (VA). The application process is separate from that of the VA. An expedited process is available to warriors wounded after October 1, 2001 as well as anyone who is currently 100 percent disabled through the VA. Family Maximum Amount The maximum amount that a family may receive is generally between % of the basic benefit rate. If the total disability amount for qualifying family members (spouse, children or dependent parents) exceeds that level, benefits will be reduced proportionally. Do You Need a Lawyer? The Social Security Administration does not require you to be represented unless your appeal reaches the fourth stage (federal court). At that time, you will be required to have an attorney represent you. But the bigger question is should you have a lawyer? Pros and Cons of Hiring a Disability Lawyer Reasons to Hire a Lawyer An experienced Disability lawyer may handle hundreds of 31

34 claims each year. He or she will know what must be done to improve your chances of having your application approved the first time through. As mentioned earlier in the book, on average over the last 10 years, only 28% of all initial claims were approved. If your initial claim is denied, the timeline before you potentially receive benefits is extended significantly in some cases it is months before a hearing is scheduled for your appeal. You want your initial application to have the best chance of approval. The process of applying for Disability can be confusing. The lawyer will understand the process and will be able to guide you through it. An experienced Disability attorney can complete your online application for you. An experienced Disability attorney can provide you with helpful forms to take to your treating doctors to help prove you are disabled. An experienced Disability attorney can obtain and electronically submit your medical records directly into your electronic SS file. The Disability Application and the Appeals Process are time consuming. An attorney can cut the amount of time you have to spend on your claim by telling you which tasks are necessary and when. The government loves forms. An attorney will know which forms must be completed and when. The attorney will know what to expect at the Disability Hearing and can help prepare you for it. 32

35 Your attorney will have access to medical or vocational expert resources if they are needed. Your attorney may be aware of other resources available to you that could help your case, based on your disability. If you receive income from other sources like Workers Compensation, a lawyer can explain if and when there might be offsets to the disability amount paid to you. Your lawyer may find cause to expedite your hearing. While you will pay a fee to hire an attorney, that fee is set by the SSA so you don t have to worry about being taken to the cleaners. Most Disability attorneys offer a free initial consultation. The attorney can review your situation and let you know up front whether or not they believe you have a case. That way you won t waste your time pursuing a claim that will likely be denied. Reasons Not to Hire a Lawyer Money is the primary reason most people choose to represent themselves. They simply do not want to pay the lawyer s fee. Note that attorney fees are set by the SSA and cannot be charged until the agency says so. A good portion of the information required for the initial application must be provided by the disabled party. This includes information on employment history and medical providers, including contact information, history of treatment, etc. Some people assume since they have to do all this work, they might as well file the initial Disability claim themselves. (Note as discussed herein, that recent changes in the SSA procedures mean that SSA now allows 33

36 attorneys or other third parties to actually complete the online application for you) Lawyers are just in it for the money, right? Sadly, over the years the profession has gotten some bad press. In reality, most of the lawyers we know are hardworking men and women who got into the practice because they wanted to help people. If you decide to hire an attorney to handle your claim, we recommend you talk to at least two or three before hiring one. If you are uncomfortable with any lawyer you meet, do not hire him or her to represent you. Choosing a Social Security Disability Lawyer If you decide to hire a Disability attorney to handle your claim, you will want to speak with several law firms before you hire one. The three main questions you want answered about the attorney are: 1. What is the experience level? (Has the lawyer represented numerous disabled people with similar cases?) 2. How will your case be handled? Will you be able to get status updates? 3. Are you comfortable with the law firm and the lawyer overseeing your case? Not every Disability firm or lawyer will be right for your case. You need to be comfortable communicating with the firm you choose to represent you; if you are uncomfortable, the relationship will likely not be a good one. Here are some basic questions I recommend you ask each lawyer you interview. These questions address the three major points just described. Compare answers from each of the lawyers before making your decision: 34

37 1. How long have you practiced Social Security Disability law? 2. How many disabled clients do you represent each year? 3. How many disability cases have you handled for those with my specific disability? 4. Why did you become a Disability attorney? 5. Explain the process a disability case follows in your office. How long does it take on average? 6. As a client, what are your expectations of me? 7. Who in your office (attorneys and other staff) will handle my disability case? What experience do these individuals have? 8. Tell me about your client services policies. 9. How will you keep me updated on the status of my case? 10. If I call your office, will someone be available to talk to me? 11. If my case must be appealed, who will handle the hearing? As in all relationships, good communication is necessary and that goes for both sides. In order to build a solid attorney-client relationship, communication must be honest and open. Once you hire a lawyer, if you have questions or concerns, always talk to him or her about them so your concerns may be addressed accordingly. Reasons to File Your Application as Quickly as Possible In the Social Security world time can be money. Waiting to file an application could cost you approximately $ or more of benefits for each month the application is not filed. Thus, you 35

38 could lose thousands of dollars in back benefits if you delay in filing your application. This is because the SSA can only go back one year prior to the filing of your application in order to compute back SSDI benefits, and can only go back to the actual filing date for the computation of back SSI benefits. For example, even if you became too sick to work in January 2012, if you do not file your application until January 2014, then the furthest that SS could go back to compute back benefits on a successful claim is one year prior to the filing date. Even if you stopped working and had strong medical records as of January 2012, the SSA can only go back to January 2013 when computing your lump sum back benefits, because they can only go back one year prior to the filing of the application. By waiting to file your application you are limiting the time in which SS could calculate your back benefits. In the SSI scenario, if you file the application in 2014 then back benefits can only be computed as of that 2014 date, regardless of when you actually became disabled. So the sooner your initial application is filed the better. How Long Does It Take? The Disability application process can be time consuming, so you want to file your application as soon as your doctor has told you that you will be disabled for at least 12 months or that your condition is terminal. Once you complete the application and provide the Social Security Administration the originals of all required documentation, you can expect to receive a decision within 3-5 months. If your application is approved, you are eligible to begin receiving benefits in the sixth full month after you became disabled. 36